Loading...
HomeMy WebLinkAbout1989-0755.Fabro.91-06-07 ONTAF/IO EMPLOYES DE LA COURONNE CF/OWN EMPLOYEES DE L'ONTAF/IO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS XNTHE IO, TTER OFANARBXTI~TZON Under T~B CROMN EMPLOYEES CO~X~ ~GAZN~NG ~CT Before ~ GRI~CE 9ETT~~ BO~ BETWEEN OPSEU (Fabro) Grievor - a~ - The Crown in Right of Ontario (Ministry of Industry, Trade & Technology) Employer BEFORe: J. Roberts Vice-Chairperson E. Seymour Member G. Milley Member FOR THE A. Ryder GRIEVOI~ Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE P. Rusak EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HE~LRING December 13, 1989 May 11, 1990 October 18, 1990 November 6, 8, 13, 15, 20, 1990 April 26, 1991 May 8, 13, 14, 1991 June 7, 1991 1 INTERIM AWARD This is another in a series of interim awards in a lengthy and complex proceeding. On June 7, 1991, we heard submissions from the parties upon the question whether we ought to grant an adjournment of the hearing days which had been scheduled for June 7, 19 and 18, 1991, and if so, whether the adjournment should be on terms. After considering these submissions, we issued an order ~Exhibit A, attached) granting the adjournment on terms. We also agreed to issue written reasons for our order in an Interim Award. The relevant facts may be briefly stated. Over a considerable period of time, the grievor filed a large number of grievances. The gist of many of them was that the grievor was being harassed by management. Several of these grievances were assigned to this panel, and we began dealing with them on December 13, 1989. The grievor's perception that he was being subjected to harassment seemed to cause him considerable stress and his mental health began to deteriorate. He went off work -- apparently due to these health problems -- from December 5, 1988 to May 23, 1989; September 19, 1989 to March 5, 1990; and July 24, 1990 to August 10, 1990, when he was discharged. 2 On November 15, 1990, the grievor's psychiatrist, Dr. C. V. Murray, ~estified that.he first saw the grievor as a patient in 1985. A~ that time, he found the grievor in excellent mental health. However, through several visits beginning in November, 1988, Dr. Murray testified, he found the grievor to be very different. Referring to a letter which he wrote to the grievor's counsel on November 6, 1989, Dr. Murray stated that the grievor was "obviously severely and chronically depressed, profoundly anxious about the manner in which he was being treated by his superiors at work, and he impressed me as being physically and emotionally exhausted." Dr. Murray stated that the deterioration in the grievor was reflected in his physical appearance and demeanour. He had lost considerable weight, his concentration was poor, he was listless and spoke very slowly. His condition, Dr.'MUrray said, was akin to "battle fatigue." As our hearing began to stretch over several months, with the inevitable delays inherent in finding mutually convenient dates for the parties and the panel, the Board noted a similar deterioration in the condition of the grievor. He progressively lost considerable weight and appeared more and more distracted and listless in his demeanour. 3 On November 20, 1990, Mr. John Quigley, the grievor's Supervisor and the main witness for the Ministry, began to testi~¥ on direct examination. He was scheduled to continue his testimony on April 26, 1991~ however, he did not appear. It seems that in the intervening period, Mr. Quigley had su£fered serious heart problems. Apparently, he was hospitalized up to the a~ternoon before April 26th. He was scheduled to return to the hospital in late May and undergo open heart surgery on June 2, 1991. Apparently, counsel for the Ministry was unaware that Mr. Quigley had been released trom the hospital the day before the hearing. She was Under the impression that he remained ~n the hospital on April 2$th and UPon her making that representation to the panel as the reason for Mr. Quigley's absence, we granted an adjournment. In actual fact, Mr. Quigley spent some time in his office on April 26th. The next scheduled day of hearing was Hay 8, 1991. Mr. Quigley showed up to continue his testimony~ however, prior to his taking the stand, counsel for the Ministry entered into evidence the following letter regarding Mr. Quigley's precarious state of health: To Whom It May Concern: I am a cardiologist on staff at the Oakville-Trafalgar Memorial Hospital. I saw Mr. John Quigley in consultation on April 24, 1991 with regard to the onset of new symptoms. I' contacted Dr. Gunstensen, Mr. Quigley's cardiovascular surgeon, to discuss these symptoms. Dr. Gunstensen and I decided that Mr. Quigley required further cardiac investigations prior to his proposed surgery in early June. Dr. Gunstensen has arranged to have Mr. Quigley admitted to hospitalT in Hamilton at the end of May £or these investigations,-and he is to remain in hospital under the surgery on June 2nd. As Mr. Quigley's symptoms are potentially secondary to serious cardiac disease, I have advised him to limit' his exertion and exposure .to stress and strain until the etiology of his symptoms are determined by the cardiac investigations. He is capable of judging when he has reached the limit of his endurance and must stop to rest when he has done so. I understand that he is to testify on May 8th; if he becomes mentally or PhFsically exhausted during the day he should be allowed to stop at that point. If his surgery in early June. is uncomplicated, he should be fit and capable to testify again two months later. Please let me know if you require any further information. Sincerely, (signed) Mary Feneck, M.D., F.R.C.P. {C) Dr. Feneck was concerne~ that the stress of testifying might exhaust Mr~ Quigley to the point where, for the sake o£ his health, he would have to stop. Our ow~ observations of Mr. Quigley indicated to us that there was, indeed, cause for concern. He was very pale and frail appearance. We advised him that we understood the caution issuE~d by his Dcotor and would stop the hearing if he felt u~able to continue. Nevertheless, Mr. Quigley completed his direct testimony on May 8th. Counsel for the grievor then submitted that in view of the probabilitF that Mr. Quigley would not be available for several months after his open heart surgery, the Board should expedite matters By scheduling two hearing days for cross-examination before Mr. Quigley re-entered the hospital in late May. We agreed. We scheduled Mr. Quigley's cross-examination for the evening oX May 13 and the.day of May 14. However, Mr. Quigley did not show up on May 13th. Before the scheduled commencement of the hearing, he "faxed"' to the Grievance Settlement Board the following letter: 6 May 13, 1991 ¥IA ~ACS~LE Grievance Settlement 8oard 180 Dundas Street West Suite 2100 Toronto, Ontario M~G lZ8 ATTENTION: Mr. Roberts Dear Sir: Re: OPSEU (Fabro) and O.D.C. This is to express my feelings regarding the scheduling of my · cross-examination by union counsel on the evenings of May 13th and 14th. Although I was very tired after the examination-in-chief last week, I did not find it alone stressful. However, the interruptions by union counsel did affect me to the point where I was feeling the type of discomfort which my physician had advised me to avoid. Since I believe cross-exam~nation would involve more incidents of this type, based on my doctor's advice I do not wish to put myself in a position where my health is at risk. In the past my medical problems have never affected my ability to function normally. However, the recent complications have resulted in considerable anxiety and I would pre,er that the cross-examination be postponed until after my surgery. Yours truly, (s~gned) John Quigley Manager Mr. Qui~le¥ indicated'that he was declining to appear for cross- examination because he feared that it would cause the kind of stress Chat would put his health at risk. 7 Counsel for the Ministry requested an adjournment for both May 13th and 14th. Counsel £or the grievor resisted this request, and we heard submissions from both of them. Thereafter, we granted an adjournment for May 13th, but conditioned the granting of an adjournment for May 14th upon receipt of confirmation from Mr. Quigley's cardiologist that his medical condition made it inadvisable for him even to appear at the hearing. Subsequently, on May 14th, the panel was made aware of the contents of the following letter from DE. Feneck: May 14, 1991 Mathew, Dinsdale & Clark 401 Bay Street Simpson Tower, St. #2600 Toronto, Ontario ATTENTION: Ms. Paula Rusak R~: Jo~n Oui~leF To Whom It May Concern: During testimony on May 8, 1991, Mr. Qui~ley became s~mptomatic on a few occasions secondary to the strain. There is a very good probability that these symptoms would re-occur upon further testimony. As these symptoms are potentially threatening to his cardiac .condition I have advised Mr. Quigley to avoid provoking them by avoiding testimony until his cardiac disease has been defined by the investigations scheduled for the end of the month. Sincerely, [signed) Mary Feneck, M.D., F.R.C.P. (C}62 Based upon this, we granted the adjournment for May 14th. We also received the following update £rom Dr. Murray regarding the state o~ the grievor's health: May 21, 1991 Mr. Alick Ryder, Q.C., Ryder, Whitaker, Wright & Chapman, 30 St. Patrick Street, Suite 600, TORONTO, Ontario, MST 3A3. Dear Mr. Ryder: Re: Grag FABRO I u~derstand from Mr. Fabro that y~u would like an up-to-date report from me about his condition. I saw him again last week for a one-hour interview. Needless to say, I find. that his condition has generally deteriorated even more. It is obvious that he has lost even more weight, and as before, h~ appears exhausted, although at all times, pleasant-mannered and considerate. You must be aware by now that he is not a man who is Drone to complain a good deal, 'even under the most gross and prolonged provocation. His depressionis very obvious which is scarcely surprising, in view of the fact that he receives no financial benefits, and has been reduced to living on his savings while the court proceedings drag on. - I need hardly tell you that I am gravely concerned about his condition, and the probability that if circumstances do not change, he will become the victim of either a severe emotional breakdown or will encounter a grave and ~atal cardiological emergency, such as a coronary occlusion or a stroke. In my opinion, it is o~ the utmost urgency that the legal proceedings be concluded without delay, before it is too late. Yours very truly, (signed) C. V. Murray, M.D., F.R.C.P.(C), Consultant Psychiatrist. 9 These events essentially were confirmed in an interim award issued on May 23, 1991. We also indicated in that interim award that we declined to issue any order with respect to the hearing days scheduled for June 7, 19 & 28, 1991, and intended to convene on June 7th to hear any evidence which could practicably be heard. In the event that this was not practicable, we stated, we would "entertain a motion to adjourn until Mr. Quigley is declared by his Cardiologist to be fit to testify and hear submissions as to what ter~s, if any, should condition the adjournment." At the co.-.encement of the hearing on June 7, both counsel indicated that they wished to make submissions upon the motion to adjourn. Counsel for the .grievor did not resist the motion to adjourn, but asserted that the motion must be granted upon terms which included some monetary compensation to the grievor over the period of delay caused by Mr. Quigle~'s absence. Counsel-for the Ministry, on the other hand, submitted that this Board lacked jurisdiction to include as one of the terms of an order granting an adjournment the monetary compensation requested by counsel for the grievor. Essentially, it was submitted, that would amount to an award of damages which was beyond our statutory mandate. 10 We concluded that the Grievance Settlement Board had the power to grant an adjournment upon terms and include as one of those terms an order directing compensation to the innocent party adversely affected by the delay. As was stated by Osler J. in the Endorsement of the Divisional Court in the Judicial Review of Re: Taffinder and Ministry of Correctional Services, G.S.B. 8296/83; docket ~891/83 (1984), "We agree that the Board is master of its own procedure in its discretion in this procedural matter is not li~el¥ to be interfered with. I__~. at pp. 2-3. The court went on to state that in deciding upon an adjournment, the Board solely was subject to the following two constraints: (1) a decision to refuse an adjournment must not amount to a denial of natural justice; and, (2} the terms attached to an adjourmaent must be fair and reasonable in all the circumstances. Subject to the foregoing constraints, the Grievance Settlement Board has jurisdiction to require as one o~ the terms upon which an adjournment is issued the payment of compensation to the innocent party. If authority is needed for this proposition, we need only re£er to the previous 'decisions of the Board in Re Sinah and Ministry of Transportation (1990} G.S.B. ~100/90 (Brandt}; MacMillan and Ministry of Correctional Services (1988), 157/88, at p. 7 (Brandt); Re MorleF and ~inistry of Tourism Recreation (1989), G.S>B. ~886/88 (K~opf); and, Re Miller Ministry of C°rrectional Services (1990), G.S.B. ~008/90 (Verity}. 1I In making this observation, we emphasize that here, we are dealing, with a request for compensation and not a request for damages. We understand that we must carefully craft our award of compensation to avoid crossing the line between the two. We had this in mind when we turned our attention to the question of whether the grievor in this case ought to be granted compensation as a term of the 'adjournment occasioned by the unavailability of Mr. Quigley. We found that this was such a case. It was an exceptional case, in that both Mr. Quigley and the grie~or suffered from serious illnesses. If the hearing were to press on without delay, Mr. Quigley's health would be seriously compromised. At the same time, the grievor's illness was such that further delay carried with it a serious risk of harm to him. Accordingly, we concluded that in the circumstances it was fair and reasonable to re,ire the Ministry to compensate the grievor. We took into account the following factors: (a) the delay was caused by the unavailability of Mr. Quigley, a key Ministry witnesses: (b) On the evidence, we were convinced that the stress oX delay unalleviated by compensation would likely occasion a serious risk of deterioration in the grievor's health; (c) In line with this, we noted that this was a discharge 12 case and the grievor, as a result, appeared to be without a continuing source of income. As to the level of compensation, it seemed to the Board that the grie~or should be paid sums equivalent to those he would have received on long-term disability. The grievor was unquestionable ill and it was the view of the Board that if he had not been terminated by the Ministry he likely woul~ have been in receipt of payments under the Ministry's long-term disability plan. As to retroactivity, counsel for the grievor submitted that the payments should be retroactive to April 26, 1991. This was the day when Mr. Quigley was scheduled to begin his testimony but he did not appear at the hearing, having just been released from the Hospital on the previous afternoon. As already indicated in this award, Ministry counsel ~btained an adjournment on April 26th upon a representation that the grievor remained hospitalized. Counsel for the grievor submitted that Mr. Quigley was at fault for not showin~ up for the hearing and there were suggestions that he might have been in Dad faith. In this regard, it was stressed that Mr. Quigley had been seen in his office on that day. Based upon this, counsel submitted that Mr. Quigle¥ could have appeared at the hearing and chose not to. Because we lost one da~ of hearing as a result of these actions by Mr. Quigley, it was submitted, it was fair and reasonable to make the compensation t° 1.3 the grievor retroactive to that date. We declined to do so. It was the opinion of the Board that while there was some miscommunication between Mr. Quigley and counsel ~or the Ministry, it was more than probable that Mr. Quigley would not have been up to testifying on April 26th. He had just been released from the hospital after suffering serious cardiac problems. Moreover, when Mr. Quigley did finally commence his testimony on May 8, some 12 days later, he was obviously was in a precarious state of health and had t6 testify under a doctor's caution. This was not the picture of a man who would have been available to testify in any real sense on April 26. We discounted the fact that Mr, Quigley went to his o~fice on that day. In our view, the stress of sitting in an office chair could not reasonably be compared with the much higher level of stress is felt by most witnesses when called upon to testify. We decided to make the compensation to the grievor retroactive up to and including May 13, 1991. That was the beginning of the period when Mr. Quigley became consistently unavailable due to his illness. It marked the commencement of the period of delay caused by his unavailability. Ir'was our view that compensation should be payable to the grievor until the next day o~ hearing, when Mr. Quigley would resume the stand and testify upon cross-examination. 14 Finally, we dealt with the matter of recoverability of the compensation payments. The Board was mindful of the fact that we were not dealing with the question of damages but rather placing a term on the granting o£ an adjournment, in the interests of reason' and fairness. Our purpose was not to provide the grievor wit~ a windfall. Accordingly, we provided in our order that should the grievor ultimately be unsuccessful in challenging his discharge, the sums paid b~ the Ministr~ under our order should be recoverable by the Ministry, although without interest. DATED at London, Ontario, this 31st day of July R. '~J , Vice-Chairperson E. Se Member ~F~_our, ONTA RIO EMPL 0 Y~S DE LA COUP~ONNE CROWN EMPL 0 YEES DE L 'ON TA RIO GRIEVANCE C,OMMISSION DE ' S~Fi'LEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDA$ fJTREET WEST, SLI;TE 2100, TORONTO, ONTARJID. MSG 1Z8' TELEI~HONE /TE~.EPHONE: (4 ~6) 326-138~ 180, RUE ~NQAS OuEST, BUREAU 2~, T~ONTO (ONTARIO. MSG 1Z8 FAC~I~LE~TE~COPIE : (4~6) 3~-~3~ ~IBIT 'A" ~ - % 755/89, 757/89 A. Ryder Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solictors FOR TH~ P. Rusak EMPT~YmR Counsel _ Mathews, Dinsdale & Clark Barristers & Solicitors May 1, 1990 September 5, 1990 December 11, 20, 1990 Having considered the submissions of the parties on the matter of adjournment, the Board issues the following order to be followed by written reasons in an Interim Award: (1) JuvJ. sd,tc~,~on: The Board controls its own procedure, and pursuant to that power, we can grant adjournments on terms. The only constraints upon our power to deny an adjournment or grant one on terms were identified by the Divisional Court in ~ T*~fen~er GSB #296/83. The decision to refuse an adjournment musk not a~ount to a de~al of natural justice. The terms attached to an adjournment must be fair and reasonable in all the. circumstances. When called upon to g~ant an adjournmen=, we have =he power to grant compensation~'indeed,~ deny compensation subject to the foregoing principles. ~ (2) ~hou]d ~he Gr4evo~ here he ~r~Dted co~eDsa~4on a~ a term of th~ '~jo~ment ogc~s{one~ ~¥ the ~navai~ab~l.~tv o~ a key w~tnes~ ~or ~he ~.~n~,t~y. M~ Ou~a~ev? -We bear in mind ~ha2 this is an exceptional case, involving ~he risks inherent in serious illnesses in both the grievor and the ke~ witness for the Ministry. In the circumstances, ' we conclude that it is fair and reasonable to require the Ministry to compensate the Grievor, for the following reasons: (A) The delay is caused by unavailability of a Ministry witness~ (B) In addition to the letters regarding the state of the grievor's health, our own observations of the grievor~w~ combined with the cross-examined testimony of Dr. Murray re the grievor's sy~ptomology convince us that the stress of delay unallevia~ed by compensa~ion will likely occasion serious risk of deterioration in the Grievor's health; (C) In line with this, we note this is a discharge case and the Grievor, as a result, appears to be without a continuing source of income: (3) T~ve.! Of CgmPen-at~on Compensation should comprise payment to the Grievor of sums equivalent to LTD, or, if possible, placement on LTD. In regard to the latter we note that a discharge is not final until all proceedings on the discharge grievance are at an end. (4) Ret~oact ~v~ ty The compensation to the Grievor should be retroactive to, and include, May 13, 1991. - (5) Te~ of ComDens*t4on Compensation shall be payable until the next day of hearing, which is when Mr. Quigley will testify. (6) T4m{nq of Payments Due to the circumstances, it is ~ecessary to pay. the amounts owing under this order without delay. The Ministry has indicated that a cheque for the retroactive payment can be issued within 10 days, and we so order. Thereafter, payments to the Grievor must be made according to the standard practice of the ' Ministry with respect to the frequency of issuance of pay cheques to its own employees. t (7) Recove~h41 { tv We are mindful that here, we are not dealing with a question of damages, but rather placing a term on the granting of an adjournment in the interests of reason and fairness. Our purpose is not to provide the Grievor with a windfall. Should the Grievor ultimately be unsuccessful in challenging his discharge, the sums paid by the Ministry · shall 'be recoverable by the Ministry, although without interest. ( 8 ) Ad ~ o- vn~nt Subject to . the forgoing terms, the adJournment is gran=ed · da..~, of June, 199 ~. R~e~.~, Vice-Chairperson E. Se~our, Me, er ADDENDUM I agree with the decision in all but two aspects. 1. I would have granted the payment of compensation to Mr. Fabro retroactive to April 26, ~he first day the Ministry's witness failed to appear before this panel. 2. I would have ruled ~hat the payment of ~/~e compensation granted by this panel not be subject to recovery. Since the delay in proceedings is caused solely by the unavaila~ility of a key Ministry witness, the grievor should not be required to bear any financial =esponsibil£~¥ for that delay. ? Ed Seymour-Member